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Excerpted From: Dermot Groome, Educating Antiracists Lawyers: The Race and the Equal Protection of the Laws Program, 23 Rutgers Race & the Law Review 65 (2021) (248 Footnotes) (Full Document)


DermotGroomeFor over 400 years, the history and legacy of slavery have permeated American life. In eight minutes in 2020, the curtain on this legacy of racial injustice fell away, laying bare the depths of the injustices visited upon Blacks and People of Color. The death of George Floyd has caused a reckoning for us as lawyers, to accept that the profession to which we have devoted our lives has been an essential component in the machinery of structural racism. As legal educators, we must face our role in building that machinery and supplying the generations of lawyers who maintain it, perpetuate it, and prosper within it.

On June 2, 2020, the Faculty of Penn State Dickinson Law unanimously adopted a resolution recognizing “the ongoing, systemic and perpetual racial and societal injustices in this country, which have been passed on from generation to generation.” The faculty jointly resolved that “we must never enable but should all be active antiracists in taking responsibility to condemn and to end” systemic racism wherever it exists. On June 18, 2020, the Faculty unanimously adopted a resolution that I drafted entitled “Race and Our Educational Mission,” This second resolution was my attempt to operational the faculty's resolution to be antiracist. This second resolution recognized that the Faculty had “a unique opportunity and important responsibility to combat racism and inequality through its educational mission.” In this document, the Faculty resolved to develop an annual plan of anti-racist education throughout its curriculum, to develop co-curricular programing addressing structural racism, and to conduct a yearly assessment of the effectiveness of its efforts. By these two resolutions, Dickinson Law has incorporated antiracist education into its core educational mission, a commitment that “shall remain in effect until such time that the faculty deems, by resolution, that it is no longer necessary.” Other law schools have taken similar actions. For example, the deans of all ten law schools in Texas have committed: “to equip these future generations of attorneys with the ability to recognize injustice, including racial injustice--and the commitment to advocate for its eradication.”

At the same time I proposed we adopt Race and Our Educational Mission, I presented the faculty with a blueprint for a co-curricular program called Race and the Equal Protection of the Laws (“REPL”). This document proposed that, in addition to incorporating issues of race wherever relevant in our curriculum, all students be required to participate in a program that explored the relationship between race and our legal system and engaged the in constructive diverse conversations about this relationship. The proposal set out in nascent form, a unique teaching method that I believed was required by the subject matter and our objective to cultivate within students an enduring commitment to work for equality as lawyers. The faculty unanimously approved the REPL program.

Starting in the fall of the 2020-21 academic year, the REPL program became a required course for all first-year students. This one-credit, eight-session course examines the relationship between race and our legal system and how the implementation of mostly race-neutral laws have shaped and perpetuated structural racism in areas like criminal justice, education, health care, housing, capitalism and in our democratic institutions. The final session of the course redirected the focus of the discussions to the students themselves. Students were asked to begin the process of discerning what their individual response might be as lawyers at this moment of our country's history. We challenged students to imagine how they, as lawyers, might dismantle systems of racism and encouraged them to make a solemn, personal commitment to themselves do so. Students were invited to record a video selfie of their personal commitment to themselves as a reminder for the future when professional and personal obligations may compete with their resolve to work for equality as lawyers.

A diverse group of over fifty individuals, including faculty, staff, upper-level students, and alumni, have worked together to pool their knowledge, personal experiences, and skills to create the content of the program, give presentations to students and guide them in the sometimes difficult conversations we have asked them to have with each other. Recognizing the importance of role models, REPL also invites lawyers who can speak authoritatively and authentically about the issues examined in the course.

The two resolutions of the Dickinson Law Faculty recognize that our responsibility as legal educators is not simply to transfer legal knowledge and skills, but to “instill in students an abiding appreciation of, and eagerness to defend, the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and to cultivate within students, a principled, enduring commitment to work for true equality in our society over the course of their careers.” To do this, we must not only reconsider what we teach but how we teach it.

The rationale underlying the Equal Protection Clause is succinctly stated in Constance Baker Motley and Thurgood Marshall's complaint in Brown v. Board of Education: “This case deals with inequalities imposed on individuals by the state, because of race. The Fourteenth Amendment was passed to abolish these inequalities.” Motley, known as the “civil rights queen,” secured James Meredith's right to attend the University of Mississippi. She represented Dr. Martin Luther King Jr. and the Freedom Riders and, as the first Black woman to appear before the Supreme Court, won nine of the ten cases she argued. Motley became the first Black woman to be appointed to the federal bench, where she presided over many civil rights cases during her 36 years as a judge. It was as a judge that Motley struggled with the complexities of applying the limited power of “the equal protection of the laws” to ensure real equality in the lived experience in the lives of Black and Brown people. She issued decisions that both surprised and disappointed civil rights lawyers.

The five words of the Clause derive their immense import from their brief but unequivocal mandate--they correct the hypocrisy of our founders' assertion that “all men are created equal.” In essence, the Equal Protection Clause is a call to, and a guarantee of, equality for all; it is a call for legal and social justice for all people under the jurisdiction of the United States. The challenge before us as educators is to train lawyers who will become agents for the promotion and protection of equality within our legal system. It is not enough to simply expect race-neutral laws; we must train lawyers committed to interpreting and applying those laws in a manner that ensures real equality in the lived experience of all Americans.

This article describes the first iteration of the REPL program. We are in the process of assessing its successes and failures and will adapt and improve the program in the coming years so that we can best prepare our students for the difficult work awaiting them. Part II of this essay describes the teaching method I developed for this course. A method that relies heavily on the principles of Critical Pedagogy. Next, Part III presents an overview of the teaching method developed for REPL and informed by Critical Pedagogy. It describes how we structure each session of REPL in order to help transform how law students see their opportunities and responsibilities as lawyers with respect to equality. Part IV provides a summary of the eight sessions of the course, and Part V offers some closing thoughts on this project.

[. . .]

Our task as legal educators today is greater than it has been in the past. In this important period of our national history, our country requires of us something that only we can provide: a generation of lawyers who will dismantle the remaining vestiges of systemic racism in our nation. We must educate the next generation of lawyers to finish the job of rooting out systemic racism wherever it continues to live and breed. We must equip our students not simply with the knowledge and skills they will need for this task but with a sense of their place and role in our changing, imperfect, struggling democracy and with the enduring passion they will need to sustain their efforts.

Professor Dermot Groome is the Harvey A. Feldman Distinguished Faculty Scholar at Penn State Dickinson Law.

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